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Transfer Application No. 72/C of 1980, decided on 7th April, 1980.

--- S. 94-Stay of proceedings-Two cross suits pending at two different places-Pending decision of transfer application, High Court ordering stay of proceedings in both suits--- Notwithstanding stay order ex parse decree passed in one suit Ex parte decree, held, ultra vires and passed without jurisdiction-Suit wherein ex parse decree passed, further held, cannot be said to be not pending.

Karam Ali and others v. Raja and others P L D 1949 Lah. 100 rel.

-- S. 24-Transfer of suit--'Two suits involving common questions of law and facts-Both suits, held, necessarily to be consolidated and decided by one Court.-[Transfer :if civil suit].

Sh. Sakindar Iqbal for Appellant.

Mian Iqbal Khalid for Respondent.

Date of hearing : 7th April, 1980.

The petitioner filed this petition on 11th February, 1980 for transfer of" the respondent's suit for restitution of conjugal rights from the Court of Mr. Asad Raza. Judge Family Court, Toba Tek Singh to the Court of Mr. Muhammad Nasim Akhtar Khan. Judge Family Court, Lahore - where her own two suits, one for dissolution of marriage and the other for maintenance were pending. This case was admitted to regular hearing, on 16th February, 1980 when an order was passed staying proceedings in both the suits meaning thereby the suit for restitution of conjugal rights as welt as the suit for dissolution of marriage. Notwithstanding this order, the learned Family Court, Toba Tek Singh passed an ex parte decree on 20th February, 1980 against the petitioner in the suit for restitution of conjugal rights. It is on the basis of this decree that this petition is opposed by the learned counsel for the respondent on the ground that since there is no suit pending there is nothing to be transferred.

2. Learned counsel for the petitioner, however, argued that the order of the Family Court passing the ex parte decree having been made during the course of operation of the stay order, that decree was without jurisdiction and as such it could not be said that there is no suit pending. He also submitted that in any case an application for setting aside the ex parte decree on this round has already been made.

3. Learned counsel for the respondent, in view of this, submitted that this Court has no jurisdiction to pass any order under section 25-A except to transfer a suit. So this Court cannot go into the question of vires of the order dated 20th February, 1980.

4. I do not agree with the learned counsel for the respondent in view of Full Bench judgment, Karam Ali and others v. Raja and others (P L D 1949 Lah. 100) in which the effect of a stay order issued by the Court was considered. It was held :-

"On a purely grammatical construction of this Rule, it must beheld that the jurisdiction of the Court to take further proceedings or execution proceedings under a decree appealed from is excluded the moment an order staying such proceedings is recorded, and that this exclusion does not depend on anything other than the making of the order."

Consequently it is not relevant whether the order has been served upon or communicated to the Court. This principle will eminently apply to the facts of the present case also unless it is shown that the order of stay issued by this Court was itself without jurisdiction but this cannot be held. The effect of the stay order is, therefore, that the order dated 20th February, 1980 was without jurisdiction and was consequently ultra vires. It is not therefore, a case in which it can be said that no suit is pending. In any case formal application having been made the suit shall have to be restored in view of the principle of law stated above.

5. Since the two suits must involve common questions of law and facts, it is necessary that they should be consolidated and decided by one Court. I, therefore, allow this petition and direct the transfer of the suit for restitution of conjugal rights along with the application for resto ration (of the suit) to the Court of Mr. Muhammad Nasim Akhtar, Judge Family Court, Lahore. The parties are left to bear their own costs.

K. M. A. Petition allowed.

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